Can my dad return gifted property from my brothers
Querist :
Anonymous
(Querist) 29 April 2021
This query is : Resolved
Sir,
My dad has 2 brothers and 2 sisters
One brother expired recently after dad gifted property to my brothers.
Dad gifted property to sons but not daughters
My dad gets pension but no home to stay no proper support from brother.
Can my father and mother can return propperty which is gifted.
One donee expired and one donee available
Sankaranarayanan
(Expert) 29 April 2021
answer is no . but if they have interest to give back the property then again execute a deed and return the same through registration authority
SHIRISH PAWAR, 7738990900
(Expert) 29 April 2021
Hello,
The property once gifted is difficult to get back. However, your father may approach the court for cancellation of gift in favour of sons as they are not taking care of their father.
Advocate Bhartesh goyal
(Expert) 29 April 2021
Yes, Children are not only moraly bound to maintain their parents but legally also bound to maintain their parents .if parents had gifted their self acquired property to their children ( son and daughter ) and thereafter children neglects or denies to maintain and care their parents then parents has right to claim gifted property back from their children under the provisions of Maintenance and Welfare of Parents and senior citizen Act.
kavksatyanarayana
(Expert) 29 April 2021
You stated, "my dad had two brothers and two sisters" and my dad gifted property to sons but not to daughters. there is variation in your query. If your dad is gifted the property to his sons through a registered deed, it is not possible to revoke the gift deed. But as per the Welfare of Parents and Senior Citizens Act, it is the duty of the children to look after the parents and if neglect, proceed under the Act.
ashok kumar singh
(Expert) 30 April 2021
agreed with views of earlier experts,
therefore no further comments, so far.
thanks
Pradipta Nath
(Expert) 30 April 2021
In value addition, the cancellation of gift deed to be made by the Dad himself on a reasonable valid ground before the District Collector and pray for cancel the gift deed and restore the property. But the same has to be done on fast basis to set aside the doctrine of acquiescence!
Dr J C Vashista
(Expert) 01 May 2021
I agree with experts.
The gift deed can be cancelled.
It would be better to consult and engage a local prudent lawyer for appreciation of facts/document, professional guidance and necessary proceeding
P. Venu
(Expert) 01 May 2021
The facts posted are inconsistent and lacks clarity. Why your father gifted the property to his brothers when he has his own family consisting of wife and children?
Did the alleged "gift" take place during partition of family property? Was it gift or a settlement?
What were the terms and conditions,if any, in the gift deed?
What do you mean by "Dad gifted property to sons but not daughters"?
Why your parents now seek to take the property gifted?
Hemant Agarwal
(Expert) 02 May 2021
AGREE with various Views of above Experts.
Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com
T. Kalaiselvan, Advocate
(Expert) 04 May 2021
A gift of a property that is valid and accepted by a donee, cannot be revoked by the donor, except under certain special circumstances
As per provisions of Section 126 of the Transfer of Property Act, if the gift is conditional and donee has not fulfilled the condition, then donor may get some right to revoke the gift. .
What are the remedies available to such parents, who face neglect from their children, after their property has been transferred to them? Can they take back the property from such children? Recently, the Bombay High Court had an occasion to deal with a similar situation.
When the widowed father of a Mumbai-based person wanted to get remarried, the son insisted and made the father gift half of the rights in the property owned by the father to the son, to safeguard his interest in the property.
After half of the share in the property was transferred, the father and stepmother faced troubles from the son and the daughter-in-law. The son and daughter-in-law were willing to maintain and support the father but not the stepmother, which was not acceptable to the father. So, the father wanted the gift of half of the property, made in favour of his son, to be cancelled. He, therefore, approached the tribunal appointed under the provisions of ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’.
In order to ensure that parents and senior citizens are taken care of properly by their children or legal heirs, the central government passed ‘The Maintenance and Welfare of Parents and Senior Citizens Act, 2007’ (The Maintenance Act), which provides for certain circumstances under which gifts of property made by parents and senior citizens can be cancelled, at the option of the parent/senior citizen. This provisions is contained in Section 23 of The Maintenance Act and it reads as under:
“Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall, at the option of the transferor, be declared void by the tribunal.”
T. Kalaiselvan, Advocate
(Expert) 04 May 2021
As Section 23 of The Maintenance Act specifically provides that where the property has been gifted on the understanding that the transferee child/legal heir shall provide the basic needs and maintain the senior citizen or parent, any failure on the part of the child to honour such promise made, is tantamount to fraud. Such promise may be express or may be implied and may be inferred from the circumstances surrounding the transaction. Under such circumstances, the agreement to transfer the property shall be deemed to have been obtained by way of fraud and can be voidable by the aggrieved parent/senior citizen.
As the provisions of The Maintenance and Welfare of Parents and Senior Citizens Act, 2007 override the provisions of any other law in force in India, Section 23 will prevail and in such instances, the gifts/transfer of property that is made after coming into force of The Maintenance Act, becomes voidable at the option of the transferee. However, if the property had been transferred before The Maintenance Act came into force, it would be difficult for the parents to get the property back from their children.
Therefore father can invoke the provisions of law referred herein above.
T. Kalaiselvan, Advocate
(Expert) 04 May 2021
The orders of the Tribunal at Bombay is furnished below for your information and reference:
Decision of the court in the case of father wanting half property back from son who ill-treated him
The tribunal, before which the father had filed the case for cancellation of the gift of half of the property, declared the gift of the 50% share in the property as void and restored the ownership of the whole of the property to the father. Aggrieved by the decision of the tribunal, the son preferred an appeal before the Bombay High Court. A division bench of justices Ranjit More and Anuja Prabhudesai upheld the decision to cancel the gift given by the father. The court also observed that as the gift of half of the share in the property was made by the father at the request of his son, it was implied that the son and daughter-in-law would take care of the father and his second wife, after half of the share in the flat was transferred in the son’s name. As the son and daughter-in-law failed to meet their promise, the father was entitled to ask for annulment of the gift made in favour of the son.
So, although a property given under a valid gift is generally final and irreversible, in special circumstances like desertion of parents by the child, the same can still be annulled.
